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Exterritories and Camps.

Juridical-Political Spaces in the "War on Terrorism"

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The
US Naval Base Guantánamo Bay on Cuba became well known
around the world in early 2002, when international media
reported on suspected Taliban fighters and Al-Qaida
members interned there.

The
pictures of shackled prisoners in orange overalls with
eyes and ears covered led to worldwide protests by human
rights organizations against the prison conditions and
raised questions about the status of the prisoners and
the application of international law at the military
base.

Guantánamo
Bay is a territory under the control of the United States,
but where US law does not apply. It is particularly
the legal special status of this exterritorial area
on Cuban territory that is instrumentalized by the USA
in the "War on Terrorism". This makes it possible
to deny the prisoners the status of legal subjects.

If
one considers the history and changing functions of this
naval base that has existed since 1903, then it is clear
that this use is the current specific instance in a
series of respectively differing logics of space.

In
1902, following the US victory in the Spanish-American
War, Spanish colonial rule in Cuba ended with the occupation
of the island by the USA. Even after the end of military
rule, Cuba still found itself in quasi-colonial dependency
on the USA. The USA was thus able to dictate a constitution
for Cuba, which granted the US the possibility of military
intervention and the establishment of coal loading station
and naval bases, among other things. Under these unequal
terms, a lease was signed in 1903 for the area of the
US Naval Base Guantánamo Bay.

The
naval base, the position of which on the south coast
of Cuba enables the USA to control the Caribbean region,
was set up as a militarily strategic location for the
US navy and mercantile marine. In this way, Guantánamo
Bay served the interventionist policies of the United
States until 1934: from this vantage point, the US surveilled
the Panama Canal under its sovereignty and also prepared
invasions into future US protectorates such as Mexico,
Nicaragua and Haiti.

In
the period thereafter, the military strategic significance
of the naval base decreased. During the pro-American
Batista regime, it still served as a center of logistic
support, and with the start of the Cuban revolution
in 1959, Cuba was monitored and infiltrated from here.
With the "Cuban Crisis" of 1962, however,
the function of the military base changed. Guantánamo
Bay attained a new significance as a located symbol
of the USA on enemy communist territory. It became the
place of the direct confrontation between two systems,
where the respective claims to power were staged. This
was expressed on the one hand in a reinforcement of
the border, which became one of the best guarded in
the world, but on the other hand it was also expressed
in the rhetoric of the respective governments: the Kennedy
government used the naval base as a possible security
in the conflict with the Soviet Union, whereas Castro
spoke of Guantánamo Bay as a threat to Cuba, as a place
where US aggressions against Cuba were carried out.
The Cuban government regarded the US American presence
in Guantánamo as an illegal occupation, as a violation
of Cuba's territorial integrity and sovereignty. Since
the revolution, Cuba has ceased to receive payment for
the lease and has been demanding the return of the territory.
In the Cuban constitution of 1976, the contract for
the naval base was finally declared retroactively illegal.

In
the early nineties, when Cuba lost its most important
ally and major trade partner in consequence of the downfall
of the Soviet Union, the significance of Guantánamo
changed again. Although the naval base continued to
serve the USA as a military training ground, it now
became useful primarily because of its exterritorial
status and concomitant legal status. In a certain sense,
the United States functionalized the illegality of the
naval base that was asserted by the Cuban side. The
lease contract for Guantánamo Bay in fact gives the
United States control over Cuban territory, but allows
it to suspend US law at the same time, since according
to the argumentation, the territory is subject to Cuban
sovereignty. The special legal status was first intrumentalized
by the United States in the early nineties, when Haitian
and Cuban boat people attempting to reach the USA were
picked up and brought to Guantánamo. Between 1994 and
1996, 50,000 refugees were held in camps at the military
base. Since Guantánamo Bay in not located on US American
territory, the refugees had no right to apply for asylum
in the United States here and were deported.

In
the "War on Terrorism", Guantánamo's legal
status has attained a significance that goes beyond
the Caribbean region. Since January 2002, the USA has
been holding suspected Taliban fighters and Al-Qaida
members interned at the military base. The prisoners
were originally detained in the so-called "Camp
X Ray", a temporary outdoor camp. This consists
of rows of cage-like cells, 2.4 meters by 1.8 meters
in size, surrounded by chainlink fencing and covered
with a metal roof. In April 2002, construction began
on a new, better secured camp with expanded capacities.
At a distance of roughly five miles from "Camp
X Ray", "Camp Delta" was built on the
south coast of the base in an area, where Haitian and
Cuban refugees had already been detained in 1993. In
late April, the prisoners from "Camp X Ray"
were relocated there. "Camp Delta" is currently
being enlarged to a capacity for up to 2000 prisoners.

Simultaneously
with the construction of the new prison camp, the so-called
"Camp America" was built for the US military
police units responsible for guarding the prisoners.
Whereas the control personnel for "Camp X Ray"
was accommodated in tents on a hill near the camp, the
military is quartered here in wooden houses equipped
with air conditioning and warm water. The grounds, which
are designed for a longer period of use, have telephone
and Internet connections, as well as sports and leisure
facilities. The new prison camp has nothing more of
the provisional character of the old camp either. In
"Camp Delta", not only were provisions made
for an unlimited period of internment of the prisoners,
but also for their more effective control: the individual
cells, which are smaller than in "Camp X Ray, are
separated by three permanent walls. The better sanitary
equipment with toilets and running water also means
that the prisoners no longer need to leave their cells.
The better fortification of the cells in Camp Delta
also results in a decrease in possibilities for the
prisoners to communicate among themselves. In addition,
it is hardly possible to see into the camp from the
outside. Like "Camp X Ray", the area of the
new camp is enclosed with barbed wire fences and surrounded
by wooden watchtowers. However, the outermost fence
also has a view shield, which prevents the prisoners
from seeing out and possible observers from seeing in.
Journalists are only permitted to approach "Camp
Delta" up to a distance of 180 meters away from
it, so that they can only see the roofs of the cells.

In
the meantime, the number of prisoners interned at "Camp
Delta" is about 650. They are afforded neither
the status of prisoners of war, nor of civilians. The
USA circumvents the Geneva Convention and thus international
law by defining the prisoners arbitrarily as "Unlawful
Enemy Combatants", for whom no constitutional rights
are recognized: the prisoners have no right to legal
representation nor to a fair trial, and they are held
for an unspecified period with no review of remand in
custody. Guantánamo Bay's spatial-legal special status
enables the USA to newly interpret and redefine law
here. Guantánamo becomes recognizable as a location,
of which the conventional military strategic significance
has decreased, but which still continues to serve the
strategic interests of the USA. In Guantánamo Bay, a
parallel legal system is created, initially limited
to the prison camp there, but which is meanwhile also
applied outside this territory.

Giorgio
Agamben: State of Emergency and Camp

"A
reflection is needed on the paradoxical status of the
camp in its character as a space of exception: it is
a partial piece of a territory located outside the normal
order of law, but which is not therefore simply an exterior
space. What is excluded from it [...] is included by
virtue of its own exclusion. What is primarily fixed
in the order in this way, however, is the state of emergency.
The camp is thus the structure, in which the state of
emergency, the jurisdiction over which is the foundation
of sovereign power, is permanently realized."
(Giorgio Agamben, Mittel ohne Zweck, p. 43)[1]

In
conjunction with Giorgio Agamben's investigations of
the relationship between sovereignty, state of emergency
and camp[2],
the significance of Guantánamo Bay within a changing
political order becomes clear. Agamben analyses exactly
this new political space, which opens up when the political
system of the nation-state enters a crisis, and he examines
changes in the way power functions in this space. A
redefinition of the relation between sovereignty and
territory and the relationship between law and space
is taking place. The former structure of the nation-state,
which is based on the functional conjunction of three
elements - the legal order of the state, the correlative
territory and the affiliation of citizens to their respective
nation - , is dissolving. From an investigation of this
process, Agamben develops a model of power that unites
not only the juridical-institutional model of power,
in other words the conception of sovereignty and state,
but also the biopolitical model of power, the disciplining
of the body. What is central to this is the constitutive
connection between the state of emergency as a legal
category and the camp as its spatial concretization.

The
capacity to decree a state of emergency, i.e. the temporary
suspension of the legal order, represents the basis
of sovereign power. The sovereign decides not only on
the valid legal system, but also on its suspension.
The suspension of law - the state of emergency - is
thus already part of the legal order by means of the
sovereign's power of decision. Lawlessness is not only
inherent to law and power, it is their precondition.
The state of emergency as an abstract legal dimension,
however, requires a place, in which it becomes concrete.
For Agamben, this is represented by the camp. In the
camp, the state of emergency, which was essentially
a temporary suspension of order, is given a permanent
spatial location. Camps are exceptional areas within
a territory, which are located outside the area, in
which the law applies. In addition, the camp is the
place, in which the biopolitical dimension of power
becomes visible. Here it takes hold of the interned
subjects. By denying them - for example, in the refugee
or prison camp - any legal or political status, it reduces
these subjects to their purely physical existence. The
camp is the place of total legal arbitrariness and the
absolute power of decision of the sovereign power. By
explaining that this temporary or spatially limited
state of emergency becomes the new standard, however,
Agamben also describes the camp as a place, from which
new law is created from the lawlessness there. It is
a kind of catalyst, which transfers the suspension of
order to a new permanent spatial and legal order.

Guantánamo
Bay can be regarded as a paradigm of this new political
space of the state of emergency and the camp. It is
effective in the twofold way described by Agamben: as
a juridical space, in which the temporary suspension
of order is transferred to a new legal order, and as
the physical location of the camp, in which the legal
situation of a spatial arrangement becomes concrete.
Based on Agamben's argumentation, however, it is clear
that Guantánamo Bay as an exterritory can no longer
be simply described as an exterior space. Guantánamo
Bay is, in fact, a territory outside the state territory
and the legal order of the USA, which enables the suspension
of legal order with relatively little contradiction.
Nevertheless, it is integrated in the decision-making
authority of the sovereign power within the United States'
area of power. Thus it is also possible that Guantánamo
Bay serves the USA as a testing ground for an extension
of the parallel legal system tested in the prison camps
there. The legal redefinition of the "Unlawful
Enemy Combatant" introduced there and the concomitant
deprivation of the prisoners' rights is to be applied
in the future outside Guantánamo as well.

With
Guantánamo, an example was created for how a political
system no longer orders legal standards and forms of
living in an established territory, but instead employs
exterritoriality as a constitutive element in maintaining
power. As a spatial category, exterritoriality designates
locations such as Guantánamo Bay, which are outside
a state territory and its jurisprudence, but which are
still controlled by the respective sovereign power.
The suspension of order is transformed from a provisional
measure to a permanent technique of ruling. Through
the increase in the power of the executives acting as
sovereign power, this results not only in the loss of
the traditional separation of constitutional forms,
but also makes the deprivation of rights a constitutive
element of the new legal order. The state of emergency,
which is manifested in the various forms of exterritoriality,
becomes the new regulator of the political system. Alongside
state, territory and nation, it becomes the fourth element
of political order.

Military
Order

"The
fundamental significance of the state of emergency as
an original structure, in which law encloses life itself
through its own suspension, became strikingly clear
through the military order decreed by the president
of the United States on November 13, 2001."
(Giorgio
Agamben, in Lettre International[3])

Two
months after the attacks on the World Trade Center and
the Pentagon, this "Military Order" on the
"Detention, Treatment and Trial of Certain Non-Citizens
in the War Against Terrorism" extended the power
of authority of the executive branch and strengthened
its sovereignty. As early as September 14, 2001, both
houses of congress granted the president wide-ranging
special powers for military measures with the joint
resolution, the "Authorization of Force Resolution".
Appealing to these extraordinary powers, in the security
policies backlash following 9/11, the Bush administration
took recourse to the rhetoric of the national and global
state of emergency to legitimize the suspension of the
basic rights of freedom anchored in the US Constitution.
With this military order, the US government places non-US
citizens suspected of terrorism under the jurisdiction
of a special court of law that has yet to be created,
outside the range of civil law. This involves so-called
Military Commissions, which seriously limit the rights
of the accused in a shortened trial. The sovereign,
whether this is the executive or the sovereignly acting
US military, can
now decide on the status of persons that it deems a
threat to national security - regardless of their location.
In any case, however, suspected terrorists face unlimited
imprisonment until the "War on Terrorism",
and thus the state of emergency formalized by the "Military
Order", is declared over.

As
a further measure in the declared War on Terrorism,
on October 26, 2001, six weeks after the attacks, George
W. Bush signed the "USA Patriot Act"[4].
This is a domestic policy measure that equally affects
citizens, tolerated but illegal residents in the USA,
and immigrants. Through the "USA Patriot Act",
the powers of the government have been extended and
the possibilities for control through courts and congress
limited at the same time. The national anti-terror law
not only enables a stricter surveillance of persons
and new gathering of information in the name of national
security, but also the arbitrary detention of suspected
terrorists. The constitutional guarantees of "due
process" rights and the right to liberty defined
in the First Amendment of the Constitution can thus
be suspended.

This
new orientation of the political space of the USA internally
and externally also includes the relocation of institutions
of incarceration to areas outside the USA and the exclusion
of prisoners from the jurisdiction of US courts of law,
which have both been tested in Guantánamo Bay. Since September 11, 2001, roughly 3000 alleged Al Qaida members
and Taliban fighters have been arrested around the world.
Of these, only about 650 are imprisoned at Guantánamo Bay.[5] Hardly anything is known
about the whereabouts of the rest of the prisoners.

Because
of its history and geographical proximity to the USA,
as well as reports in the media, Guantánamo Bay is
a relatively public place. US representatives, journalists
and the International Red Cross Committee have been
granted limited access here. For this reason, human
rights organizations and journalists think that only
those persons are detained at the US naval base Guantánamo Bay, to whom no great importance in conjunction with the "War
on Terrorism" is attributed by security experts
and the military, or those who have already been interrogated.
Other suspected terrorists, who are suspected of having
important information, are meanwhile being detained
and interrogated at more remote and secret locations.

These
are places like the worldwide facilities of the US military
or allied secret services, which are largely removed
from public control. Through reports from former prisoners
and the US military, however, it has become known that
prisoners are currently being detained and interrogated
in a closed off zone at the air base Bagram in Afghanistan.
Bagram is one of several prison centers, in which the
rules of American jurisprudence for fair trial do not
apply, and where there is additionally a possibility
to apply more aggressive methods of interrogation than
in Guantánamo Bay. Information is also available about similar uses of the so-called
"Camp Rhino" in Afghanistan, the US base on
Diego Garcia and the battleship "USS Peliliu".
In addition, the United States turns over prisoners
to the secret services of states such as Morocco, Jordan
and Egypt, where torture is used. Through these procedures,
which the USA calls "rendering", they avoid
a direct participation in brutal methods of interrogation,
yet still secure the results of these methods. Some
prisoners are even confronted with a concrete list of
questions, which the US investigators want to have answered
through the security services of third states. The United
States also plans to establish four permanent military
bases in Iraq[6].
This corresponds to the strategy of a long-term expansion
of the network of strategic exterritorial locations.

USS
Peliliu, Bagram, Diego Garcia

At
the beginning of the Afghanistan operation "Enduring
Freedom" in October 2001, when the USA had not
yet reorganized the US naval base Guantánamo
Bay and other locations as prison camps, the US administration
took recourse to the paradigm of the exterritory: the
warship. This has no fixed position and this does not
represent any firmly located territory in the sense
of the nation-state with borders and an identity, but
rather can be flexibly deployed anywhere by the US military.

According
to the "International Convention on High Seas"
from 1958, in international waters "warships on
the high seas have complete immunity from the jurisdiction
of any State other than the flag State."[7]
US warships are thus subject only to the sovereignty
of the US military. If the USA captures suspected terrorists
in the "War on Terrorism" and takes them to
warships for detention or interrogation, these prisoners
are subject exclusively to the jurisdiction of the US
military.

Another
prison camp of the United States that is completely
closed off to the public is located at the US military
base Bagram in Afghanistan, 40 km north from Kabul.
The military airport Bagram was built in the 1970s by
the Soviet army. During the Soviet occupation of Afghanistan
from 1979 - 1989, it served as a base for troops and
provisions and provided air support in battles. In late
2001, the USA conquered the airport that the Taliban
and the Northern Alliance had been fighting over for
years. All that was left at that time from the period
of Soviet occupation, aside from the 3 km long landing
strip, were three large hangars, a tower and several
storehouses.

Since
then Bagram has been used by the US military, British
units and other coalition troops and has been further
developed into a permanent military base. Accommodations
have been built for 10,000 US soldiers and the landing
strip has been improved. Whereas there were just 500
US soldiers at Bagram in early 2002, by June of the
same year there were already 7,000 US soldiers and multinational
armed units in the operation "Enduring Freedom"
stationed there. The soldiers are quartered in tent
camps. The base also has a canteen, a post office, a
laundry, a telephone tent, leisure and sports facilities
and several shops. The tower from the Soviet era has
been expanded into an administration center, in addition
to its original function. Earth dams, mine fields and
fences have been built to protect the base. A heavily
guarded security zone one to three kilometers wide has
additionally been drawn around the base to protect it.
All the settlements and villages within a 15 to 20 km
radius - this distance corresponds to the range of missiles
and mortar fire - have been militarily secured and are
controlled by regular patrols.

In
addition to its use as a military base, however, the
Bagram air base also serves the United States as a prison
camp that is removed from any public control. Even the
International Red Cross Committee was not granted access.
Bagram is considered one of the most important interrogation
centers of the USA.[8]
At this time, there are probably between 40 and 60 prisoners
being detained in various places on the base. Released
prisoners have reported[9]
being subjected to so-called stress and duress techniques
during detention. This form of torture consists, for
example, in sleep deprivation for days, uninterrupted
noise or the denial of necessary medication. The prisoners
are held in rooms with permanent bright light or complete
darkness. They have to remain in fatiguing physical
positions and are beaten. In December 2002 it became
known that two of the prisoners being detained for interrogation
at the Bagram air base died. Nothing more is known about
these persons or the circumstances of their death.[10]

On
Diego Garcia, a small island in the Indian Ocean under
British protectorate, prisoners suspected of terrorism
are being detained at a US military base and interrogated.
The island is completely isolated: there is not another
bit of land within a radius of over 1,500 km.

The
uninhabited 16 km long coral atoll was discovered in
the 16th century by the Portuguese and later annexed
by the British colonial empire. The colonial power brought
workers to the island to cultivate coconuts. In 1960,
when Diego Garcia was to be turned over to military
use, the British relocated the inhabitants at that time
to the island of Mauritius, about 2,000 km away. In
1965, when many of Great Britain's former colonies in
the Indian Ocean gained independence, the islands remaining
with Great Britain, including Diego Garcia, were gathered
under the name "British Indian Ocean Territory."
Legally, the island is therefore British territory.
A representative of the British government has sovereignty
over local administration and is the supreme judge for
all matters subject to British law. Under him are the
customs officials, police officers, and a unit of the
Royal Marines, which is responsible for the protection
of the entire "British Indian Ocean Territory".

In
1971 the USA began building military facilities on the
island. The legal foundation for this is a gratuitous
lease contract provisionally limited to 2016 between
the UK and the USA. This enables the United States to
erect a naval base and communication facilities on a
part of the island. Initially, only the construction
of a radio station, a dock and a small runway were planned.
Later another building for personnel was built, along
with several hangars and storehouses. The US soldiers
were quartered in tents in so-called "Camp Justice"
or on freight ships in the lagoon of the island. Up
until the 1980s, the facilities, access to which was
limited exclusively to US military personnel, were continuously
expanded: the harbor area was enlarged and the runway
extended to 4 km. Meanwhile, Diego Garcia has been developed
into one of the main naval bases of the USA. As a so-called
"Footprint of Freedom", the base is highly
important for military operations in the Indian Ocean
and Arab region. During the first Gulf War in 1990/91
the number of military personnel stationed at Diego
Garcia doubled, and the island was used intensively
for war operations. Diego Garcia was the only US base,
from which direct air strikes were flown. In recent
years, the island has also repeatedly served as a base
for war operations, for example against Iraq in 1998
and against Afghanistan in 2001.

At
present, the United States is holding suspected Taliban
fighters and Al Qaida members prisoner. According to
reports from human rights organizations, brutal interrogations
measures are used there, similar to interrogations in
Bagram. Because the island belongs to the territory
of the UK, however, Human Rights Watch demands that
the British government ensure that no human rights violations
take place there through the USA. In a letter to Tony
Blair, Human Rights Watch argues that the British government's
obligation to prevent, investigate and prosecute any
case of torture according to International Law applies
to the entire territory subject to British jurisdiction.[11]

Guantánamo
Bay, Bagram and Diego Garcia each have a history of
their own as exterritorial US military bases. What these
places have in common, however, is that they were initially
useful to the USA primarily because of their military
and geostrategical potential, although their use today
for conventional
military operations varies. What particularly distinguishes
them, though, is that because of their exterritoriality
they are currently constitutive components of a new
political order. In these exceptional places, what Agamben
describes as the suspension of legal order is manifested.
The fact that they are not part of the state territory
of the USA and their resultant special status in US
law is crucial for the United States in relation to
the use of these military bases as prison camps and
interrogation centers in the "War on Terrorism".
As manifestations of the state of emergency, in other
words specifically because of their exceptionality,
these internment camps represent places that are outside
the US American territory and which thus redefine the
space of the USA. Largely removed from public control,
they become places of externalization and exclusion.
These exterritories are instruments of sovereign power,
with which the hegemony of the USA is not only expressed,
but its sphere of influence is even expanded.

[8]"Bagram,
which reportedly has a capacity of 40 to 80 detainees,
has clearly become a key processing centre for US
interrogation." Peter Symonds: Detainee dies
during US interrogation in Afghanistan, World Socialist
Web Site, 11.12.2002, http://www.wsws.org/."

[9]Dana
Priest, Barton Gellman: U.S. Decries Abuse but Defends
Interrogations, Washington Post 26.12.2002
Amnesty
International AI Index: AFR 27/003/2003, 23 January
2003, http://www.amnesty.org/
Center
for Constitutional Rights: CCR provides further
Specific Evidence of Torture and Other Inhuman and
Degrading Treatment of Prisoners by the United States,
New York 6.4.2003, http://www.ccr-ny.org/
Human
Rights Watch: Reports of Torture of Al-Qaeda Suspects,
New York 27.12.2002, www.hrw.org

[11]
"The treatment of detainees on Diego Garcia
also implicates the legal obligations of the British
government. As a party to the International
Covenant on Civil and Political Rights (ICCPR) and
the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT),
your government should not turn a blind eye to the
practices of U.S. personnel on Diego Garcia.
The U.K. government's duty to prevent, investigate
and prosecute any case of torture applies to all
land subject to British jurisdiction" in: Human
Rights Watch: Letter to Prime Minister Tony Blair
- British Territory Must Not Be Used for Torture,
New York 28.12.2002, www.hrw.org